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Levine Case heads to High Court, Could Have Significant Impact on Pre-emption Doctrine

Diana Levine, Photo by NY Times

Earlier this week, The New York Times prominently featured a front-page article on Diana Levine and her upcoming Supreme Court case surrounding the $6 million the pharmaceutical company Wyeth was ordered to pay her for failing to warn her adequately about the risks of one of its drugs. That award came from a Vermont jury after Levine lost much of her right arm.

In the spring of 2000, suffering from a migraine, Ms. Levine visited a clinic near here for a treatment she had received many times: Demerol for the pain and Wyeth’s drug Phenergan for nausea.

“Nothing wrong with either drug,” Ms. Levine said. “They’re both safe when given the right way.”

But if Phenergan is exposed to arterial blood, it causes swift and irreversible gangrene. For that reason, it is typically administered by intramuscular injection. According to Ms. Levine’s lawyers, using an intravenous drip is almost entirely safe as well.

This time, though, a physician’s assistant used a third method. She injected the drug into what she thought was a vein, a method known as “IV push.” But the assistant apparently missed.

In the following weeks, Ms. Levine’s hand and forearm turned purple and then black, and they were amputated in two stages.

The drug’s label, approved by the Food and Drug Administration, had warned that “inadvertent intra-arterial injection” can result in “gangrene requiring amputation.” But it did not rule out administration of the drug by IV push.

Adam Liptak, who penned the piece, summarized the argument by saying, “Business groups, often supported by the Bush administration, have vigorously pursued pre-emption arguments, hoping to build a barrier against many kinds of injury suits. Plaintiffs’ lawyers oppose broad pre-emption doctrines, saying they short-circuit valid claims arising from terrible injuries.”

This case, which is set to begin in November, is an example of the tremendous work that has been done to increase awareness around the once little-known topic of Complete Immunity Preemption. That basically boils down to, as Liptak described it, “a doctrine that can bar injured consumers like Ms. Levine from suing in state court when the products that hurt them had met federal standards.”

In the weeks leading up to the Supreme Court case, we will continue to keep you posted on the continued media coverage as AAJ’s communications and public affairs teams move our message forward and continue our Fight for Justice.

About Pete Strom

Defending criminal charges including drug crimes, DUI, CDV, mail fraud, wire fraud, bank fraud, computer crimes, money laundering, and juvenile crimes, Pete also handles Federal and State investigations. Representing individuals in Civil Matters including Class Actions, Personal Injury, Qui Tam Actions, Defective Products, Nursing Home Neglect, and Professional Licensing Defense cases. Joseph Preston “Pete” Strom, Jr., the managing partner at Strom Law Firm, L.L.C., has been fighting for justice since 1984.

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